On The Validity Of Judicial Decisions In The Nazi Era
| Published date | 01 May 1960 |
| Date | 01 May 1960 |
| DOI | http://doi.org/10.1111/j.1468-2230.1960.tb00596.x |
ON
THE
VALIDITY
OF
JUDICIAL DECISIONS
IN
THE
NAZI
ERA
THE
recent controversy between
H.
L.
A.
Hart and Lon
L.
Fuller
on
the relationship of law and morals has attracted a considerable
amount of interest.’ No doubt some of this is due to the distinc-
tion of the contestants as well as to the illustrious arena of the
contest; and there is
no
need to emphasise the intrinsic signiikance
of
the issue. At the same time,
it
would appear fair to ascribe
the particular attraction of the controversy to the fact that
it
centres round a concrete situation in recent history,
Le.,
the break-
down
of
traditional order and morality in Germany during the Nazi
era. Hart argued,
inter
alia,
that courts have
no
alternative but
to apply a properly enacted statute however evil its aims may be.
A victim of such law may rebel on moral grounds but, legally
speaking, he has
no
case; he must, at his own
risk,
choose between
his (legal) duty to obey the law and his (moral) duty not to do
or
abet evil. Fuller,
on
the other hand, emphasised that the incor-
poration
of
evil
aims
in law results in removing its very foundation,
namely, the claim to command fidelity to law. Law, considered
merely as order, contains its own implicit morality as part
of
its
connotation,
“
When a system calling itself law is predicated upon
a general disregard by judges of the terms
of
the laws they purport
to enforce, when this system habitually cures its legal irregularities,
even the grossest, by retroactive statutes, when
it
has only to resort
to forays of terror in the streets, which
no
one dares challenge,
in
order to escape even those scant restraints imposed by the
pretence
of
legality-when all these things have become true of a
dictatorship, it is not hard for me, at least, to deny to
it
the name
of law.”
a
Hart’s argument in favour of legal positivism as well as Fuller’s
case for the moral character of law both invoke Radbruch’s legal
thought as well as a German criminal court decision dealing with
the validity of a Nazi statute. While
I
do not wish to deal with
Radbruch’s views in this paper, the drift of his argument may
be
recalled in a few words. Radbruch,J with Lask and
Max
Weber,
was the leading representative of
“
relativism
”
in German legal
thought which, for the sake of simplicity, will
be
equated here with
legal positivism. According to his opinion the validity of law is
1
H.
L.
A.
Hart,
“
Positivism and the SEpeparation
of
Law
and
Morale,”
71
Ham.
L.R.
(1958),
693-629;
Lon
L.
Fuller, Positivism
and
Fidelity to Law,”
ibid.
630-673.
a
Op.
cit.
660.
J
See
Le
a1
Philoso hies
o
Lask, Radbruch, and Dabin,
Twentieth-Century
Legal I%ilosophy &ries,
401.
N,
1960.
260
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